Mst. SHAHIDA ZAREEN vs IQRAR AHMED SIDDIQUI

' KHILJI ARIF HUSSAIN, J.---This appeal, with leave of the Court, is directed against the judgment dated 30-3-2006 passed by a learned Division Bench of the High Court of Sindh, Karachi in H.C.A.

No,353 of 1998 whereby by setting aside the judgment dated 12-8-1998 passed by learned Single Bench of the High Court, matter was remained to give judgment after hearing the arguments of the parties.

2. The necessary facts of the case to decide the appeal are that the respondent filed a suit seeking declaration that 8 looms factory constructed on the Plot No,6-B, 64/65 Orangi Township, Karachi along with double storey building with machinery and other accessories with shops owned by the respondent-plaintiff and the appellant is only Benamidar of the respondent in respect of the factory and Suzuki pickup No,CH-8082D.

3. The appellant filed written statement, denied the allegations made by the respondent in the memo of the plaint. On the basis of the pleadings, following issue was framed:-- "1. Whether the plaintiff is owner of the plots bearing Nos.64 and 65, Sector No,6, Orangi Township, Karachi along with the structure and business thereon and the Suzuki Pickup CH-8082? If so, to what relief the plaintiff is entitled?"

4. After hearing the parties and recording the evidence, the learned Single Judge, of the High Court of Sindh, Karachi in Chamber dismissed the suit. There-against, respondent filed H.C.A. No,353 of 1998 and a learned Division Bench of the High Court of Sindh, Karachi by its impugned judgment dated 30-3-2006, set aside the judgment dated 12-8-1998 passed by learned Single bench of the High Court and remanded the case to learned High Court for a judgment in accordance with law.

5. Heard Syed Jamil Ahmad, Advocate- Supreme Court for the appellant. The respondent, though having been served, called absent.

6. The learned counsel for the appellant argued that the learned High Court committed error of law and fact in remanding the matter, instead of deciding the same on the basis of the material available before it and has misdirected that the judgment and decree was passed under Order XVII, Rule 3, C.P.C.

7. We have taken into consideration arguments advanced by the learned Advocate Supreme Court for the appellant and scanned the record with his assistance.

8. From the perusal of record, it appears that on 12-8-1998, the suit was listed for arguments before the learned Single Judge of the High Court, but none of the Advocates was present and the following order was passed:-- "None present, though repeatedly called since morning. It is now 12-45 p.m. The matter is fixed for arguments. Since both the learned counsel are absent, it is obvious to me that they have no wish to be heard by this Court. The orders, in the circumstances, are reserved and be passed under Order XVII, rule 2, C.P.C."

9. Thereafter, the learned Single Judge, gave judgment after taking into consideration evidence on record. The learned Division Bench of the High Court instead of deciding the appeal arising out of a suit filed in the year, 1994, after 12 years, remanded the case to decide the same, after hearing the arguments of the parties.

10. Order XVII, rule 2 of the Code of Civil Procedure does not make the hearing of arguments by the Court absolutely necessary because all that can be said on the language used in that provision of law A is that if the parties or their counsel want to address arguments the Court has to give them an opportunity to do so, but the hearing of the arguments before disposing the case is not essential. In the case of Allah Rakha and another v. Muhammad Yousuf and others PLD 1991 SC 601, this Court held that where a date is given for hearing of the arguments but none of the parties appeared to address the arguments which showed that in fact they were not interested in addressing the arguments and indeed, did not wish to address the arguments, Courts are right in considering that for the purposes of Order XVIII, rule 6 of the Code the hearing would be deemed to have concluded with the conclusion of the evidence of the parties in the case.

11. The Court cannot force the party to address the arguments. It IB can at best afford him an opportunity to address it. If the party does not avail of that opportunity it can decide the matter on the basis of material available before the Court.

12. Remand of the case should be ordered in exceptional circumstances when it is found necessary by the Appellate Court to determine the question of fact which appears to the Appellate Court to be essential for a right decision of the suit upon the merits. However, where evidence on record is sufficient for the Appellate Court to decide the question involved, then order of remand ought not to be passed.

13. In view of the above, listed appeal is accepted, the impugned judgment is set aside and the matter is remanded to learned Division Bench of the High Court for decision afresh in accordance with law preferably within a period of three months from the date of receipt of this judgment.